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Date: 20000929
Docket: IMM-4985-99
Ottawa, Ontario, September 29, 2000
Before: Pinard J.
Between:
MBUYI KADIOSHA
MADELEINE NGANDU
CHARLENE NGANDU
ANGELINA NGANDU
LAETILIA NGANDU
CHRISTELLE NGANDU
LISE NGANDU
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
The application for judicial review of the decision rendered on September 28, 1999, that the plaintiffs are not Convention refugees, is dismissed.
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YVON PINARD
JUDGE
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Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20000929
Docket: IMM-4985-99
Between:
MBUYI KADIOSHA
MADELEINE NGANDU
CHARLENE NGANDU
ANGELINA NGANDU
LAETILIA NGANDU
CHRISTELLE NGANDU
LISE NGANDU
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision rendered by the Refugee Division of the Immigration and Refugee Board on September 28, 1999, that the plaintiffs are not Convention refugees as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").
[2] The plaintiffs, citizens of the Democratic Republic of the Congo (DRC), alleged that they had a well-founded fear of persecution due to the fact that on August 13, 1998 the principal plaintiff's husband helped one of his childhood friends from Rwanda to escape from the DRC with his family. The following day, it appeared that the husband was arrested by soldiers and charged with treason. The principal plaintiff alleged that at the time of this violence the soldiers made comments against their ethnic group and the Union pour la démocratie et le progrès social (UDPS), promising that members of the UDPS would suffer the same fate as other Rwandan traitors. She maintained that it has been impossible to locate her husband since his arrest.
[3] On August 15, 1998, the principal plaintiff indicated that the soldiers returned. She indicated that she was questioned, subjected to violence and threatened. Consequently, she said she went to her parents' home where it appeared that the soldiers came to question her. She said she hid and then escaped from the DRC, which she was able to do with the help of a family friend.
[4] The decision in question was based on the fact that principal plaintiff lacked credibility, in particular on the following points:
- it was not likely that knowing someone from Rwanda would cause her husband to be persecuted;
- she indicated that her husband was taken away by soldiers from Kabila on August 14, 1998; after stating that it was her husband who went to get the birth certificates, she changed her story and said that it was actually a family friend;
- the birth certificates, ranging from 1980 to 1994, all had the same form, the same paper and the same defects;
- the seal on the monogamous customary marriage certificate was not right and had been corrected in white correcting fluid;
- with regard to her trip to Canada, it was unlikely that a person as well educated as the principal plaintiff would rely on the travel agent to the extent that she did not know which country's passports were used;
- it was not likely that Papa Patrick, a friend of the family, had paid for the air tickets and expenses of Mr. David;
- in her personal information form the UDPS is mentioned as a cause of persecution, whereas at the point of entry it was the ten Tutsis;
- the principal plaintiff's statements about the number of Tutsis involved in her story were contradictory.
[5] As to the questions of fact, and essentially the assessment of the principal plaintiff's credibility, it is well settled that it is not this Court's function to take the place of the Refugee Division when, as in the case at bar, the persons seeking refugee status fail to establish that that tribunal made a decision based on an erroneous finding of fact, made in a perverse or capricious manner or without regard for the material before it. After reviewing the evidence, I am not persuaded that the inferences drawn by the Refugee Division, which is a specialized tribunal, could not reasonably have been drawn (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315).
[6] Additionally, in its decision the tribunal wrote:
[TRANSLATION]
We must make a decision on a very specific point: were you persecuted in your country for political opinions, membership in a particular social group or for reasons of race, religion and/or nationality?
Unfortunately, we cannot conclude that you have presented such evidence. It is up to you to present us with the evidence that you were persecuted and we rely on that evidence, to the best of our knowledge, in arriving at a decision.
[7] Clearly, the tribunal stated the test applicable to determining refugee status incorrectly. The proper test is not determining whether the person claiming refugee status was persecuted in his or her country, but whether he or she fears persecution with good reason. However, what matters is that the proper test should be applied, not whether it was correctly stated. This rule was set out by the Federal Court of Appeal in Osei v. Canada (Minister of Employment and Immigration) (1990), 12 Imm.L.R. (2d) 49, in which Décary J.A. wrote at 51:
In the same way as an improper formulation of the test by the tribunal may be obviated by a proper application, a proper formulation may be obviated by an improper application.
[8] In the case at bar the perception that the principal plaintiff lacked credibility, in view of the many contradictions, improbabilities and omissions emerging from the evidence, in fact amounts to a finding that there was no credible evidence on which to base the applications in question (see Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238, at 244).
[9] Accordingly, although technically the tribunal made an error in formulating the test applicable here, that error was not significant as the principal plaintiff's lack of credibility prevented the evidence from establishing a reasonable fear of persecution.
[10] For all these reasons, the application for judicial review is dismissed.
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YVON PINARD
JUDGE
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OTTAWA, ONTARIO
September 29, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-4985-99
STYLE OF CAUSE: MBUYI KADIOSHA et al. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUG. 15, 2000
REASONS FOR ORDER BY: PINARD J.
DATED: SEP. 29, 2000
APPEARANCES:
JOHANNE DOYON FOR THE APPLICANT
MARIE NICOLE MOREAU FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOHANNE DOYON FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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